October 2003

Blinded by Science

How accurately air, dust, noise, and water samples are collected can determine whether you get fined.

By David Farber

Enforcement agencies routinely collect air, noise, dust, and water samples to determine regulatory compliance. How the agencies collect, handle, analyze, and interpret those samples, however, may be a complete mystery to the employer, who might assume that the government obtains accurate results. Unfortunately, inspectors collecting the samples often have no background in environmental or laboratory sciences and are given only the most basic training in how to collect and process samples. Moreover, analysis at the agency’s designated lab may suffer from a variety of flaws that adversely impact accuracy.
The stakes, however, are high. A single health citation not only triggers enforcement proceedings, but also can often require millions of dollars for abatement and can be used as evidence in law suits against an employer.
For example, in 1995 MSHA collected a series of silica samples across various jobs and shifts in a zinc mine. Several, but not all, indicated silica overexposures. The employer was troubled by the results, particularly given its knowledge of ventilation conditions and its past sampling experience that had consistently shown silica dust levels in compliance. As the employer’s counsel, we inquired further and learned that the inspector had minimal training in collecting dust samples and the calibration history of the highly delicate sampling equipment was uncertain. As we pressed our inquiry, we learned that the agency’s sampling and analysis procedures had not been followed. The sample that led to the violation had been reanalyzed until it yielded a false positive result. Litigation ultimately led MSHA to shut down one of its two silica analysis laboratories and withdraw the citation.
Every employer can take several simple steps to avoid invalid sampling violations. First, your health and safety professional should learn the basics of the agency’s processes and procedures for taking and analyzing samples. Often, these procedures are published by the agency (if not, they are available from the author). Second, understanding the basics of the equipment being used — air pumps, Draeger tubes, Jerome Monitors, wipe sample medium, and other typical sampling equipment — greatly assists in monitoring agency sample collection.
Third, when an inspector takes a sample, immediately inquire, and record, what measures the inspector took to prepare the equipment and how the equipment was used. Has an air pump been calibrated? Has a collection container for a soil sample been sterilized before sample collection? Where has the equipment been stored, and for how long, just before sampling? (You will be surprised how often the inspector will tell you that the sampling equipment has been stored in his or her trunk for the past few weeks.) Often, just learning how the equipment was prepared and handled before sampling will give you a significant advantage in eliminating alleged violations when sampling results come back.
Fourth, observe the inspector’s sampling equipment when it is being used and take duplicate samples or ask for a split of the inspector’s sample, if possible. A duplicate or split sample analysis by an independent accredited lab provides a comparison value.
If the equipment depends on fine calibrations, excessive exposure to heat, smoke, jostling, and other stress will affect the quality of the sample result. Was the inspector’s sampling equipment banged or turned upside down during sample collection? Did water get onto the inspector’s equipment? Did the inspector’s equipment stop functioning or break down for any part of the sample period?
Additionally, review all prior sampling results and be prepared to present them (if helpful) when the inspector’s results come in. Ask questions of the inspector regarding how the samples were handled, mailed, and transported. You have the right to ask if anything unusual or abnormal happened to the sample during analysis. Often, agencies voluntarily provide lab documentation, and it is always available to you through Freedom of Information (FOIA) requests.
As in the case study noted above, sometimes the lab is the problem. If the sample resulted in a violation but was a small amount over the allowable limit, seek the lab’s round robin test results (PAT), tests that all accredited labs participate in to determine the accuracy achieved by the lab. Lab error may be far greater than the standard error factor used by the agency before a citation is issued.
Finally, be prepared to contest troubling violations based on suspect sampling results. Often, agencies will not vacate violations without at least the threat of litigation and disclosures that come from the discovery process. It is amazing how much is learned in the early stages of a violation contest, not to mention the resulting increase in the agency’s willingness to settle a case.
Regulatory agencies are increasing sampling for environmental and occupational contaminants. In the last three years, MSHA and OSHA have expanded sampling programs addressing silica, noise, and most recently, diesel particulate. Given the trend, enforcement will increase as well. Employers need not be blinded by the science. Science gives you an advantage in confronting enforcement actions with the facts, and in maintaining your record as a safe and healthy operation.

David Farber is a safety and health attorney with Patton Boggs, LLP in Washington, D.C. Contact: 202-457-6516 or dfarber@pattonboggs.com

On Review

MSHA Explains its Special Assessment

New guidelines assign penalty points for contributing violations when determining monetary penalties.

By Adele Abrams, Esq., CSMP

Newly published guidelines concerning Mine Safety and Health Administration (MSHA) Special Assessment penalties may help produce more consistent penalties for similar violations and also make the penalty process more transparent for mine operators and other interested persons. About 5 percent of all MSHA violations are specially assessed under 30 CFR §100.5.
The document provides insight into MSHA’s logic, while imposing a framework that involves five of the six statutory criteria: size of the operator’s business, history of prior violations, negligence, gravity, and “good faith” abatement of the alleged violation. MSHA stresses that the sixth statutory penalty criteria — the effect of the penalty on the operator’s ability to stay in business — is considered only when the operator appeals the proposed penalty amount.
As codified, MSHA’s Special Assessment process is governed by 30 CFR §100.5. This section permits MSHA to waive the regular assessment formula for significant and substantial (S&S) citations (codified at § 100.3) or the $60 single assessment provision for non-S&S citations (§100.4) if “conditions surrounding the violation warrant a special assessment.” The standard notes that “some types of violations may be of such a nature or seriousness that it is not possible to determine an appropriate penalty [under §§100.3 or 100.4]. . . .”
Section 100.5 lists eight categories of violations that must be evaluated for special assessment:

• Fatalities and serious injuries;
• Unwarrantable failures;
• Operations in the face of a closure order;
• Failure to permit inspection/investigation by an MSHA authorized representative;
• Personal liability (Section 110(c));
• Imminent danger;
• Discrimination (Section 105(c)); and
• Extraordinarily high degrees of negligence, gravity, or other unique aggravating circumstances.

MSHA’s maximum civil penalty was increased from $55,000 to $60,000, effective April 11, 2003. The new guidelines include a Special Assessment Penalty Conversion Table that ranges from 33 to 110 penalty points: the lowest special assessment is $200 (33 points) and the highest is $60,000 (110 points). The dollar penalties for 33 to 79 penalty points are the same as those in the table codified at 30 CFR §100.3(g) (for regular assessments). What MSHA considers “high dollar assessments” ($10,000 to $60,000) fall within 80 to 110 special assessment penalty points. Interestingly, 100 points under the “regular assessment” system rates a penalty of $60,000, whereas 100 “special assessment” points would trigger a $40,000 civil penalty. Indeed, all regular penalties exceed special assessment penalties where 80 penalty points or more are involved.
MSHA will assign additional penalty points for violations contributing to an accident or injury. It will, however, deviate from normal penalty point systems by assigning points based on the total number of prior violations (rather than the “violations per inspection day” formula). This recognizes that small operators may have high VPID ratios while still having a relatively small number of citations, because they have few inspection days to offset those violations. Thus, if a mine has 20 or fewer violations in the previous 24-month violation history period, MSHA will use the same penalty points for this criteria as it does for independent contractors.
The agency notes in its narrative that “negligence” is the most important of the criteria considered in determining penalties, because the operator or contractor (or their agent) has more control over this than any other single factor. Thus, MSHA assigns three to five additional penalty points for Section 104(d) “unwarrantable failure” citations and orders above “regular penalty points” based on whether or not the violation contributed to an accident, and whether (and what type) injuries resulted. After negligence has been factored in, MSHA will add two more penalty points to regular gravity point computations where violations contributed to an accident, and an extra two points for all violations associated with an imminent danger order.
MSHA will not reduce penalty points for any order of withdrawal or any citation contributing to an accident, even if the operator demonstrated “good faith” and promptly abated the alleged violation. Moreover, when a Section 104(b) order is issued for failing to abate the citation within the prescribed timelines, 10 additional penalty points are added for special assessment purposes. Working in defiance of an order can bring on from three to 18 more penalty points — the high end if the violation contributed to an accident and work continued in defiance of a Section 104(b) order.
Non-S&S citations that are specially assessed start with a base of 30 penalty points ($200 penalty) and go up based on negligence and gravity findings and the number of persons potentially affected. It appears from the guidance that the maximum special assessment for a timely abated non-S&S citation, provided the operator did not have an excessive history of violations, would be $2,003 (56 points).
To apply the guidelines to a particular citation, information will be needed about the size of both the mine and its controlling entity (in terms of hours worked), the type of injury that occurred (if any), abatement details, and history of violations. In addition, there is a certain amount of discretion provided to the agency to adjust the computed target penalty amount up or down by 25 percent or $200, whichever is greater, based on information provided by field personnel in: the citation/order, the special assessment review form, or in phone conversations. Even the 25 percent variation may be exceeded by the assessor if documented in the “Narrative Findings for a Special Assessment.”
In short, special assessment is likely to remain more of an art than a science, and can be affected by subjective input at the field office level, despite the arithmetic tables in the new document.

ALJ Lowers Penalty For Reckless Disregard Fatality
Administrative Law Judge Melick reduced the civil penalty from $14,000 to $10,000 for a violation of §56.15005 that he characterized as involving “reckless disregard” and which resulted in the death of a foreman. In Worley Blue Quarry, Inc. (ALJ, July 2003), a ledge foreman who was not wearing fall protection died two weeks after falling 28 ft. from the edge of the working ledge at a Georgia dimension stone quarry. Neither the victim or his four coworkers on the ledge had been issued any fall protection and apparently a handrail around the edge had been removed earlier that day to permit workers to throw loose rocks down into a pan located below during a clean-up operation.
The ALJ found that the “reasonably prudent person” standard applied in determining whether safety belts and lines were required in a particular situation. Here, the danger of falling was obvious. Moreover, although he accepted evidence that the decedent had marijuana and benzodiazepines (Valium or Xanax) in his system at the time of the fall, there was no evidence to show that these were present in amounts to significantly impair the foreman. ALJ Melick refused to consider this a mitigating circumstance in terms of negligence because no safety belts or lines were available for workers’ use at the time of the accident. The foreman’s “reckless disregard” was imputed to the mine operator. Finally, although the judge accepted evidence of training, he found that in light of the activities leading to the accident, the training was either “grossly inadequate or completely ignored by both management and employees over an extended period of time.” Thus, no mitigation of negligence was warranted due to miner training.

Adele L. Abrams is a Maryland attorney who represents mine operators and contractors nationwide in MSHA and OSHA litigation, and provides safety and health training and consultation services. For more information, write to safetylawyer@aol.com or call 301-595-3520.